Updates

In a recent op-ed in the Forward, Daniel Sokatch, CEO of the left-leaning US-based New Israel Fund, laid out his widely shared aspiration to rehabilitate the Israeli left from afar by flooding it with cash.

“The attacks on civil society and other democratic institutions continue from year to year,” he wrote, “with some right-wing victories such as passage of the boycott law [which allows civil suits to be brought against West Bank settlement boycotts], and some defeats at the hands of Israel’s underestimated and underfunded left.”

Sokatch retold the narrative now commonly accepted overseas that sees Israeli democracy in decline, if not in full-blown collapse, as once-victorious Israeli progressives are pushed back in the face of a surging chauvinist right.

The evidence most often cited for this purported decline in Israeli liberty is the raft of right-wing bills proposed in recent years in the Knesset, including the boycott law mentioned by Sokatch.

Do the bills in question– the NGO bill, the MK suspension bill, etc. –prove that there is an assault on Israeli democracy?

And is this assault, as Sokatch claims, held back by the heroic efforts of an “underestimated and underfunded left?”

The debate over the wisdom or perfidy of the bills themselves is a hopelessly partisan one. But this last part of the left’s narrative — the claim that the bills are being stopped by the left — is eminently testable, and sheds a great deal of light on the meaning and purpose of the bills.

Much ink has been spilled on Justice Minister Ayelet Shaked’s NGO bill, which dramatically (and critics say unfairly) ups the public disclosure requirements for nongovernmental organizations that receive a majority of their funding from foreign governments. Just about all the groups that fit that description belong to the political left.

Whether the controversial bill is good or bad, democratic or anti-, it is undeniably a far milder attempt to deal with the issue than previous proposals. In the 18th Knesset (2009-2013), Likud MK Ofir Akunis (now the minister of science) proposed a bill that would have outlawed such funding altogether, all but shuttering many far-left groups.

What happened to Akunis’s proposal? Was it defeated, as Sokatch suggests, by the left?

A similar question might be asked of the rightist versions of the “nation-state bill” that drew so much opprobrium in 2013 and 2014, the ones that contained much-criticized stipulations demoting the de facto status of Arabic as an official language and granting West Bank settlements constitutional protections.

Where did they go?

The answer would surprise many who have opined on these bills in recent years. For it wasn’t the left that stopped Akunis’s bill. How could it have? The bill never made it to a vote in the Knesset where left-wing lawmakers might have had the opportunity to take a stand. It was killed by Prime Minister Benjamin Netanyahu and fellow coalition leaders, and not in any dramatic parliamentary showdown. It was simply excluded from the agenda because it lacked the minimum support it would have needed to even hazard a vote.

The story is much the same with the two nation-state bills, but this time the left’s haplessness is shown by the fact that the bills did make it to a plenum vote – where they passed.

They did not become law, to be sure. They only passed a preliminary vote, and only after Netanyahu struck a compromise with their authors, including three currently serving cabinet ministers (Shaked, Ze’ev Elkin and Yariv Levin), that saw the bills killed after the vote. Under this compromise, the authors were handed the symbolic victory of a successful vote on the condition that they then cancel their bills in favor of a more liberal Netanyahu-proposed version, one which described Israel as equally “Jewish” and “democratic,” left out any demotion of Arabic’s status and avoided the settlement question altogether.

In these votes, the left had a rare opportunity to embarrass not only the bills’ far-right proponents, but the prime minister himself. It tried to muster the votes — and failed. They were formally canceled in a vote inside the Netanyahu cabinet, on Netanyahu’s express instructions.

The point of this into-the-weeds journey into the fate of those bills is simple: it is the right, not the left, that is holding back the proverbial tide.

And these are not cherry-picked examples. The list of right-wing bills defeated by the right is a long one.

A bill proposed by the Yisrael Beytenu party that would have instituted a death penalty for terrorists – surely an easy win in terror-afflicted Israel – was defeated 94-6 (yes, 94 to 6) in a July 2015 Knesset vote. Even in its most indelicate fantasies the “underestimated” left cannot hope to summon 94 votes in the 120-seat Knesset.

Ironically, Sokatch’s own example of the controversial 2011 “boycott law,” which made the singling out of West Bank settlements a legally actionable act of discrimination under Israel’s anti-discrimination laws, undermines the narrative just as comprehensively. Foreign pundits often point to it to sustain the democracy-in-decline argument, if only because there are so few other examples of the successful passage of a distinctly right-wing law in seven years of emphatically right-wing rule.

Yet the boycott law was so defanged by the time it actually passed, with criminal sanctions excised from the final version and a high bar set for proving even civil damages, that it has yet to be enforced.

It is worth dwelling on that point for a moment: five years after its passage, the boycott law has not even been tested in court – and not for lack of Israelis who say they won’t conduct commerce with settlements.

And even after the teeth were pulled from this controversial bill, Netanyahu himself still refused to support it in the final July 2011 Knesset vote that made it law, pointedly absenting himself from the plenum (together with then-defense minister Ehud Barak).

The list grows tedious (and that’s the point). Ayelet Shaked’s longstanding proposal to add a “supersession clause” in the Basic Law: Human Dignity and Liberty, which would have enabled the Knesset to overrule High Court of Justice decisions, was dropped last summer during her very first days on the job as justice minister. Her explanation: she lacked the votes to pass the measure, or to make it worth fighting for, even within the right-wing coalition.

Just last month, Jewish Home MK Moti Yogev’s bill outlawing the broadcasting of the Muslim call to prayer on loudspeakers was withdrawn by its own author because he could not obtain the support of the Ministerial Committee for Legislation, a cabinet committee overseen by avowed rightists (and, for good measure, outspoken West Bank annexationists) Shaked and Levin. A similar bill suffered an entirely similar fate in 2014.

Sokatch’s “underestimated left” is a mirage. The left is just as ineffectual as its critics contend.

And if it is the right, not the left, that holds the line against the supposed anti-democratic surge, does that mean Israeli democracy is not, in fact, under threat?

Gimmicks

The right’s persistent habit of systematically toppling its own bills reveals the underlying gimmick that drives so much discussion about Israel on both left and right.

It is easy to argue that the left overreacts to these bills, but it is harder to argue that this is entirely the left’s fault. After all, it is usually the rightist lawmakers themselves who declare that their bills are meant to solve the supposed problem of “too much democracy,” or who say they prefer Israel’s “Jewish character” to its “democratic” one. To the left’s growing use of “democracy” as a catchword for its liberal politics, many on the right have responded by calling for “rebalancing” – i.e., weakening – that democracy.

In the end, this debate about Israel’s democracy, both at home and among those overseas who take their cues from Israel’s domestic politics, is mostly driven by the faux stridency of powerless demagogues — by rightists who propose unpassable bills in undisguised bids to become the left’s latest bogeymen, and by leftists whose hand-wringing ensures them both their foreign patrons and their mobilizing ethos of victimhood.

Or put another way, the frenetic rhetorical contest between left and right is essentially a media event, not a policy debate. The bills would not be proposed if the lawmakers could not be assured they would not be held responsible for their passage.

Thus it was that on a certain Wednesday night — that of September 2, 2015, to be exact — in a Knesset plenum nearly empty of lawmakers, MKs Akunis of Likud and Israel Eichler of United Torah Judaism managed to inject an amendment into the Broadcasting Authority Bill that would come up for a final vote that evening that made it illegal for journalists in state-owned media outlets to express personal views on political matters. The law passed, and the amendment became the law of the land.

When they noticed it the following morning, horrified political reporters took to calling it “the silencing law.”

The new requirement caused a triumphant told-you-so uproar of victimization on the left and profound embarrassment on the right. It passed by accident, coalition leaders explained. By Sunday, when lawmakers returned from the weekend, it was Netanyahu himself who brought forward the amendment to reverse the measure. It was overturned within the week.

Akunis and Eichler made weak attempts to defend the measure, but seemed more horrified at its successful passage into law than at its swift cancellation.

It is not an accident that these bills usually swell in number in the run-up to right-wing primaries. They are not meant to pass, only to be proposed. There is something profoundly unfair, Akunis and Eichler must have thought last September, in suddenly, by a trick of legislative timing, finding that their bill had become law and finding themselves held responsible for the results.

Own goals

Israel’s far-left activists, who are often at the center of these left-right skirmishes, know all this.

In a statement sent to reporters in January, B’Tselem and Breaking the Silence, two groups funded primarily by foreign governments and thus subject to the stipulations of Shaked’s NGO bill if it passes, called the bill “an own goal for the government.”

“The law won’t hurt our activities in practice,” Breaking the Silence’s CEO Yuli Novak — whose group seeks out testimony from Israeli army veterans and serving soldiers relating to human rights abuses against Palestinians in the West Bank — boasted in the Hebrew-language statement.

Hagai El-Ad, Executive director of B’Tselem, which also works to document human rights abuses in the West Bank, added: “The campaign of incitement against us…has had some positive results: we are finally talking about the occupation. Thousands of Israelis have joined the organizations [that stand to be affected by the bill] recently in order to learn, listen, volunteer and contribute to the fight against the occupation.”

The bill’s “practical content is sparse,” the statement went on – apparently without coordinating its message with overseas supporters like Sokatch, who are arguing otherwise – “but its symbolic significance is far-reaching. Mainly, it undermines the claims of the Israeli propaganda machine that Israel shares the values of the democratic world.”

One wonders if this last part about Israel’s values shouldn’t also have been coordinated with the likes of Sokatch, whose rhetoric speaks of protecting Israel’s values, while these advocates are telling the world (and, crucially, boasting to Israelis that they are doing so) that Israel lacks such values altogether.

There is a deeper message in these gaps between the rhetoric of these Israeli activists and that of their overseas supporters, between the left’s claim that it is upholding Israeli democracy and the less heroic facts on the ground in the Knesset, between the right’s own feigned militancy and the reliability with which it then kills its own bills.

In the rift between rhetoric and reality is revealed a strange truth about this debate on democracy: that it is not really a debate about democracy, but about solidarity, kinship and the social compromises on which Israeli society is constructed.

Statist, intrusive, free

Israel boasts many of the features of highly successful democracies: an open and contentious public square, free and egalitarian parliamentary elections, robust judicial recourse and oversight.

But no one quite knows why.

Built by East European and Muslim-world immigrants with no actual experience of democracy, the Israeli state is, on paper at least, worryingly monolithic and intrusive. The local traffic cop, the school textbook, the neighborhood rabbi, even the local ritual mikveh bath, are all appointed and administered by watchful bureaucrats in Jerusalem.

Nor did Israel’s early history favor democracy. For the first 29 years of the state’s existence, the center-left, today called the Labor Party, never lost an election. This de facto one-party regime controlled not only the country’s powerful security services, but much of the economy. Israel’s largest industries were state-owned and -run (and thus de facto Labor-owned and -run) in those decades.

There are almost no formal checks and balances between the branches of Israel’s government. The prime minister is not chosen directly by the people, but in a complicated process of parliamentary coalition-building. He or she cannot govern without a parliamentary majority, and is thus not meaningfully constrained by any American-style opposition legislature.

Nor does Israel possess any clearly articulated ideology of political liberty. There was no Philadelphia Convention at Israel’s founding, no Federalist Papers, no explicit public debate about the nature and shape of the country’s political institutions. The Declaration of Independence, which refers in broad terms to notions of freedom and equality, lacks the force of law.

Only in 1992 were some key rights delineated in two pseudo-constitutional “basic laws,” yet even these are in an important sense only halfheartedly constitutional. The Basic Law: Human Dignity and Liberty, which articulates fundamental rights such as bodily safety, privacy and freedom of movement, can be changed or overturned by a simple majority of MKs present in the Knesset plenum.

Add to that Israel’s bitter history of near-constant warfare that gave the military a central role in the formation of national identity, the heroicizing of military leaders that naturally flowed from this experience – indeed, add in the enormous number of generals who moved seamlessly out of uniform and into the highest elected offices in the land: Yitzhak Rabin, Moshe Dayan, Ariel Sharon, Ehud Barak – and one begins to feel that it is not the allegedly looming collapse of Israeli democracy that should surprise us, but the fact that so robust a democracy ever took root here in the first place.

Why did it take root?

Runnymede

In “The Origins of Political Order,” the political theorist Francis Fukuyama offers a counterintuitive retelling of the story of the birth of English democracy. The Magna Carta, signed by King John in 1215 after he lost a battle with rebellious nobles at Runnymede, is usually depicted as the beginning of the end for absolutist royal rule in England. By placing limits on the powers of the king, the “great charter” is said to mark a dramatic first step in Britain’s inexorable and inevitable process of democratization.

But for Fukuyama, this version of English political history, this vision of history as inevitably arcing toward present-day liberalism, misses the most salient factor in England’s democratic development. Britons are free today not only because the king was weakened at Runnymede, but because he was also simultaneously strengthened.

The monarchy that emerged after 1215 was startlingly powerful, centralized and legitimated by its sharing of political power. By the 14th century, the English state was largely professionalized, controlled its territory to the point that it could tax it effectively, and had imposed royal courts across the land that could overturn the decisions of local lords.

The extent of its strength is best shown by comparing it to Fukuyama’s counter-example: the French monarchy. For all their famed pageantry, French kings were never strong enough to meaningfully tax their nobility, and so resorted to conspiring with them against the peasantry. Unconstrained in any formal sense, but also lacking the legitimacy of their English counterparts and only tenuously in control of the land-owning classes of their country, the Bourbon monarchs gave up on ever imposing a uniform tax system in the country and resorted to selling tax-collection offices to local lords, all but exempting them from taxation while subjecting the lower classes to a double burden. In the end, the French monarchy was felled as an “enemy of the people” by the very classes it had abused.

But in England, the very fact that he was forced to confer with Parliament over taxation and war gave the English king the ability to do both effectively. In the eighteenth century, English state spending reached as high as 30% of GDP, while France’s, even in the two decades of nearly constant war with England from 1689 to 1713, could not surpass 12-15%. The English could double and triple the size of their navy when need arose without compromising the national finances; the French drove themselves repeatedly to the brink of bankruptcy.

This empowering effect of power-sharing lies at the heart of English liberty, and of Britain’s eventual preeminence. For English democracy, Fukuyama explains, did not begin in the weakening of government, but in a more complex standoff, exemplified at Runnymede, that empowered all sides.

The key to the standoff was just that: that it was a standoff. The nobles could sometimes defeat the king, but not topple the monarchy. The king could win battles against armies assembled against him, but never entirely crush the regional lords when they banded together. The result was a tense equilibrium between more or less matched opponents — king vs. nobles, monarchy vs. Parliament — with no side able to comprehensively quash the other. The rights and obligations each eked out of the other were initially extracted by force — quite literally at sword-point at Runnymede — then by implicit agreement, and eventually, over the centuries, by the institutionalization of these arrangements in the peculiar unwritten traditions of Britain’s monarchic democracy.

And it would not have happened without a strong king, one to whom commoners could turn through regional “king’s courts” for redress of grievances against the nobility, one who could unite the country in war, one who could serve as an embodiment of a shared national identity in peacetime.

Unbeknownst to foreigners, the British love for their unelected royals, that odd phenomenon of a robustly liberal democracy apparently pretending to be a theocratic dictatorship, is in an important sense a reenactment of the origins of English liberty. When they celebrate their monarchy, the British are not celebrating kings and queens as such, but the rule-bound, peculiarly English sort of royalty that formed one-half of that primordial political balancing act from which their present-day freedoms, and those of so many others who learned from their example, originally flowed.

The accident

From its earliest moments, the Jewish polity in Israel was divided not merely into political camps but into distinct social, ideological and ethnic groups that usually lived apart from each other and carried on separate cultural lives.

To this day, these divides play an outsize role in Israelis’ identities and voting habits. Israelis are more likely to vote according to their ethnic origins or religious observance than any clear economic or political interest. In political terms, Haredim live apart from secular Israelis even when they live among them, such as the many Haredi families who reside in the heart of secular Tel Aviv but vote as though they lived in Bnei Brak. Villages founded by Labor socialists fifty and even a hundred years ago continue to vote Labor, even when the village in question is a West Bank settlement that present-day Labor seeks to displace. The Ashkenazi-Sephardi divide returns in force each time Israelis go to the ballot box, and continues to serve as a key predictor of voting patterns in communities throughout the country.

Yet the centrifugal pull of these identity politics is kept in check by an overpowering belief among Israeli Jews, forged in the still-living memory of the brutalities of the 20th century, that they share a common fate. Most Israeli Jews are the grandchildren of refugees, and for most of them the state serves even today as a vehicle for fulfilling the original Zionist promise of a self-reliant refuge in a cruel world.

This ethos of refuge lies at the heart of Israeli solidarity. It is responsible for the deep-seated taboo against intra-Jewish violence. Amid countless wars and terror attacks, bordered on all sides by an imploding, war-ravaged Arab world, Israelis usually say they find the rare instances of Jew-on-Jew violence more unsettling and traumatic than even the largest and most frightening of the wars they have fought with outsiders. The sinking of the Altalena in 1948, the 1983 killing of Peace Now activist Emil Grunzweig or the assassination of Yitzhak Rabin in 1995 — all instances when Jews killed other Jews — are better known to most Israeli high schoolers than the full-blown wars that took place in those years. They are studied as watersheds of the Israeli experience because they are seen by so many Israelis as events that violated the premise of collective responsibility at the heart of the Israeli Jewish narrative.

The impact of this ethos of solidarity cannot be exaggerated. If one cannot violently repress fellow Jews, one is left with an exceedingly limited number of options for political regimes. If Prime Minister David Ben Gurion could not order Israel’s security agencies to rid him of the troublesome opposition leader Menachem Begin – not only because he didn’t want to do so, but also because he didn’t believe the security services would have obeyed such an order – that fact alone means Israel could not help but develop an open, self-critical political discourse, open competition between rival political camps, and the free elections that enable that competition to take place fairly and without bloodshed.

The essential elements at the root of Anglo-Saxon liberties, then, were all present at the dawn of the Israeli Jewish polity: an unwinnable competition among mutually antagonistic groups shackled to each other in a unifying ethos of solidarity, a simultaneous push and pull that forces on Israel’s Jews the compromises that make up what Israelis call “democracy.”

Israel’s democracy, like Britain’s, is thus in a deep sense accidental, organic, rooted as much in the collectivist instincts of this refugee nation as in any self-conscious notions of individualism or political liberty.

These compromises are evident everywhere in Israeli society and politics.

When it comes to religion and family law, for example, Israeli Jews are subject to an explicitly illiberal rabbinic court system that unapologetically denies the right to marry to hundreds of thousands of Israelis. Yet the vast majority of Israeli Jews live free and unfettered family lives, marry whoever they wish and even enjoy judicially recognized cohabitation rights for gays. They are able to do those things through the simple expedient of completely ignoring the rabbinate. There is an unspoken contract between Israel’s competing Jewish tribes that permits the rabbinate to be as stifling as it wishes on paper as long as it does not make the mistake of attempting to impose itself on Israelis’ lives in reality. The most illiberal family law system in the free world thus rests tenuously atop an essentially liberal and accepting society.

Similarly, when asked to produce a detailed analysis of the “nation-state” proposals of 2014, one of Israel’s most renowned public intellectuals, the law scholar Ruth Gavison, recommended shelving the various bills and bluntly warned Israeli leaders against engaging so explicitly with the question of Israel’s national identity. Her reason: Israelis inherited from their founders a powerful vision for their country, but its power “lies in its vagueness. A Jewish nation-state law may upset the balance between elements crucial for maintaining the vision as a whole.”

Israel’s identity, Gavison effectively argued, should not be articulated too clearly or in too much detail. Such specificity and decisiveness risked collapsing the innate social tensions from which the nation’s liberties ultimately flow.

This analysis of the roots of Israeli democracy also sheds new light on the nature of the country’s political system. It is true that there is no meaningful balance of power between the executive and legislative branches. But within the Knesset itself, nationally elected party lists, each representing a particular and usually well-defined subgroup of Israeli society, have proven incredibly effective at holding each other in check, a skill helped by the fact that no group is large enough to wield power alone.

While it is true, as noted above, that the Basic Law: Human Dignity and Liberty can be overturned by a simple majority in the Knesset plenum, that fragility on paper can blind us to the remarkable resilience of Israelis’ rights: at the end of the day, the basic law has not been overturned. Too many camps in this fraught tapestry of a society see in the law a defense of their own rights, and so will not join any coalition that seeks to overturn it.

Israel’s is a pragmatic democratic tradition, where democracy is seen as a solution to a specific and longstanding problem of social division and mutual dependence. It is more often viewed by Israelis as a mechanism for ensuring Jewish solidarity and survival than as a moral imperative in its own right.

The missing left

Beneath the demagoguery of the right’s purposefully offensive bills and the left’s self-righteous howls of oppression there is a second conversation as profound as any in Israel’s history.

Many of the activists in groups such as Breaking the Silence and B’Tselem are engaged in an explicit challenge to this Israeli notion of democracy. For them, and for many others on the editorial pages of Haaretz or the rallies of the Hadash or Meretz parties, “democracy” has come to mean almost exactly the opposite of what most Israelis understand by the term: it is the act of defying the Israeli Jewish ethos of solidarity.

The far-left blames that ethos for the paralysis of Israeli politics on the most painful issues the country faces, from the continued denial of religious liberty to the continued occupation of the Palestinians. Faced with these injustices, some of them only on paper and some of them very real indeed, these activists have little patience for “accidental” Israeli freedoms that flow from inchoate social compromises.

They want explicit legal protections, constitutionally articulated liberalism and a universalist civic politics to replace the nationalist sensibilities that today drive the Israeli body politic.

It is not hard to understand why they cause such furor in Israel, or why they are so reviled. For their opponents, especially on the right, this effort to dismantle Jewish solidarity amounts to criticizing the very fact of Jewish survival and the deepest wellspring of Israeli democracy. Solidarity, not liberalism, saved the Jews of Israel from the murderous vicissitudes of the 20th century. Solidarity, not liberalism, lies at the root of both Jewish national independence and Israeli domestic liberties. For many Israelis, those who would shift the foundations of Israeli politics away from that solidarity are in an important sense dislodged from the Israeli experience.

That their NGOs are mostly funded by foreign governments, that so much of their advocacy is focused abroad — indeed, that they are so influential overseas despite being so utterly marginal at home — only reinforces this view. It is no accident that the right, via the NGO bill and other measures, focuses its energies on this estrangement, and not on the content of these activists’ criticism.

This branch of the left cannot win this fight, not because it is wrong – there is no claim being made here about which side is morally superior – but because its defiance of the underlying ethos of Israeli Jewish solidarity drives it inevitably away from the very body politic it seeks to change.

This is why so many on the left find it so hard to defend groups such as Breaking the Silence, and thus are unable to mount an effective counter-campaign against the right.

In December, retired IDF major general Amiram Levin took out an ad in Haaretz defending Breaking the Silence, in which he insisted that soldiers must be encouraged “to speak out without fear” about their experiences in the West Bank, and to do so both “in the IDF and in Israeli society.”

He then added in parentheses – the very presence of parentheses in such an ad speaks volumes – “(and only in the IDF and Israeli society).”

Former Shin Bet chief Yuval Diskin expressed similar sentiments in a Facebook post that month, praising soldiers who come forward with their moral qualms, and praising Breaking the Silence, “even if they can make us angry, even if they are sometimes inaccurate or not doing their jobs correctly,” as providing “an important mirror to our actions.”

He then took the trouble to note: “I don’t like their activity abroad.”

Neither Levin nor Diskin was defending Breaking the Silence. They were defending the act of dissent. They felt it important to note in their defenses of the group that they actually shared the right’s criticism of it. That they nevertheless chose to publish those defenses speaks to a larger fear: that what Breaking the Silence is doing right — encouraging IDF combat veterans to tell their experiences — could become conflated with what they believe Breaking the Silence is doing wrong — its abandonment of Israeli solidarity for foreign shores. It is hard to think of a more damning critique of Israel’s far-left than these purported defenses.

And here lies the danger for Sokatch, for opposition leader Isaac Herzog, and for anyone else who seeks to rehabilitate an Israeli left that has not won an election in 17 years. As a matter of political strategy, not merely of ethics, they cannot change Israel by scorning it. The left’s political prospects — and with it, perhaps, Israeli democracy, for what is a democracy in which only one side can win elections? — may be far more threatened by being identified with the far-left’s rejection of Israeli Jewish solidarity than by the grandstanding of any rightist lawmaker.

Israeli democracy cannot be taken for granted. But those who would slander it as weak and tottering, or seek to reshape it in their own image, owe it – and us – the courtesy of first judging it on its own terms.